A meaningful analogy can be made between the this year’s eventual Super Bowl winner and a company successfully responding to an allegation of sexual harassment.
Consider for example that according to research (WSJ subscription required) the most defining and critical plays of a professional football game come down to success on first down. More specifically, the most telling benchmark for determining the team that will ultimately be successful is first down efficiency.
In this regard, the New York Times reports that the Patriots have a slight edge on first down efficiency:
The Patriots average 6.7 yards per play on first down, the Giants 6.2 yards per play, and much of the Giants’ production came from a handful of big plays.
Successfully Responding to an Allegation of Sexual Harassment
Similar to this first down football success factor, the most important factor for successfully responding to a sexual harassment allegation is how effective a company’s response is when a sexual harassment claim is first lodged. This is because it is not uncommon that more attention will be given to the employer’s initial action or inaction than is given to the alleged harassing conduct itself.
For this reason, the steps the employer takes pre-complaint to maintain a workplace free from harassment, and the steps it took in response to a complaint, can turn an otherwise manageable harassment complaint into the football equivalent of third and long.
The following are a few of the most critical points that a company should consider at the outset of responding to an allegation of sexual harassment:
- Responding to the Complaint: A sexual harassment complaint will not always be neatly presented to an employer with the “who,” “what,” and “when” type of facts clearly identified. Instead, a sexual harassment complaint may appear in various forms, such as rumors, informally shared information, anonymous letters, calls to a company’s employee complaint hot line, or a direct in-person complaint. Another common fact-pattern are complaints that come to light during exit interviews with departing employees. For these reasons, before a complaint is received, employers should train managers and supervisors to respond to any information indicating possible inappropriate conduct.
- Selecting the investigator: The most important consideration in selecting the investigator is to insure that the investigation is credible and bias free. It is also imperative that high level insiders in the company do not have any influence over the investigator or the investigation. For this reason, using an outside, neutral investigator will almost always be preferable to having someone from inside the company investigate the sexual harassment allegation. A few other tactical considerations that should go into the assessment of an investigator:
- Knowledge of Employment Discrimination Law: The investigator should have a working knowledge of discrimination and harassment law, as well as experience in conducting investigations;
- Likely Court Room Presence: Employers should also consider whether the investigator will make a good witness at trial if there is future litigation concerning the complaint’s allegations. This is because the investigator will likely be a key witness for the employer and essential for establishing the employer’s defense.
- The Investigation should be viewed as “Exhibit A” in future litigation: It should be assumed that the employer’s investigation will be used as a defense in future litigation. It is, therefore, important for the investigator to be mindful of this fact before committing anything to writing during the investigation: A wrongly or poorly chosen word or sentence, an omission, or an inaccurate description by the investigator may result in significant legal issues down the road.
While the focus of this Super Bowl will likely be on the quarterback play of Tom Brady and Eli Manning, it is the battle for first down efficiency that will often determine a team’s success for failure.
Similarly, a company’s success or failure in responding to a sexual harassment allegation against one of its executives, managers, or supervisors will often turn on its initial response and not on the actual harassment. For this reason, the company’s investigation must be beyond reproach with employers committed to taking appropriate steps in fulfilling their legal obligation under state and federal discrimination laws to conduct a prompt, meaningful, and thorough investigation of the circumstances and, if necessary, take appropriate remedial action.
For more information and additional recommendations on how to conduct a successful sexual harassment investigation, contact Jason Shinn.